FAQ

Yes. If one parent is awarded primary care of a child, it does not mean that the non-custodian parent is deprived of all parental rights. You are entitled to have contact with your child, unless a court orders otherwise. The non-custodian parent can exercise their contact rights by arrangement with the custodian parent either through mediation or by a court order. If the court does not say what the terms of the contact are then the custodian parent should allow you reason- able contact to your child.

To determine reasonable contact, factors such as where you stay in relation to your child, the age of the child, the relationship between you and your child and any other factor that might be relevant to your circumstances will be taken into account.  In practice, reasonable contact can mean anything from shared residency to every alternate weekend and alternate school holidays. Shared residency can mean that the child stays with you the one week and with the other parent the other week.

It is a criminal offence for the custodian parent to unreasonably refuse or prevent you from having contact with your child or exercising your parental rights and responsibilities. The offending parent can be sentenced to a fine or imprisonment of up to one year.

The custodian parent must advise you in writing of any change of their residential address. If this is not given, the custodian parent may be guilty of a criminal offence. If contact with your child is part of your settlement agreement, your ex-spouse must comply with the court order or may be held in contempt of court.

You have full parental responsibilities and rights in respect of the child if you were married to the child’s mother at the time of the child’s conception, birth or at any time between the child’s conception and birth, unless a court order has forbidden you from exercising your parental rights.

If you have not been interdicted from having contact with your ex-spouse or the children, you can approach your exspouse to settle the matter without having to go to court. You may approach Social Justice to assist you and your ex-spouse to settle the dispute and to draft a parenting plan, which can be registered at the office of the family advocate or made an order of court.

The court will consider the following:

• – the best interests of the child;
• – the relationship between you and the child;
• – the degree of commitment that you have shown towards the child;
• – the extent to which you have contributed towards expenses in connection with the birth and maintenance of the child; and
• – any other factor that should, in the opinion of the court, be taken into account.

Yes. When people are getting a divorce, the court must make an order regarding contact with the child.

Yes. Maintaining your child is your responsibility and having regular contact with your child is your right. You do not pay maintenance in order to see your child and one should not confuse rights with responsibilities.

A parent may apply to a court to change, cancel or suspend a contact order:

Variation or substitution (this means to change a contact order). For example, a father decides that he would like to see his child every 2 months instead of every alternate weekend because he is moving from Johannesburg to Cape Town.

Rescission (this means to cancel a contact order). For example, a mother finds out that her child is being abused by the father of the child and applies to the court to have the contact order cancelled.

Suspension (this means to postpone the contact order). For example, a father decides that he cannot manage his 12-month-old baby every second week- end and he would rather wait until the baby is two years old before he exercises stay-over contact with his child.

Parents should always try to solve problems between themselves before taking any drastic steps such as taking the other parent to court. If there is a dispute between the biological parents of a child with regards to the best interest of the child that cannot be solved by the parents, they must seek to agree on a parenting plan through mediation before approaching the court.

A parenting plan may determine any matter in connection with parental responsibilities and rights, including, but not limited to the following:

• – where and with whom the child is to live;
• – the maintenance of the child;
• – contact between the child and any of the parties and any other person;
• – the schooling and religious upbringing of the child.

It is a written agreement between co-holders (parents) of parental responsibilities and rights to determine how to exercise their respective responsibilities and rights in respect of a child.

A Social Justice family mediator will be able to assist parents to find alternative solutions to their disputes without having to go to court. Should a dispute not be settled through assistance or mediation, parents may approach the family advocate with proof that the mediation process failed and follow the legal process in the courts. A parenting plan must be in writing and signed by both parties. It may be registered with the family advocate or made an order of court.

This is an amount that someone who has a legal duty to support another person must pay to that person monthly. For example, both parents have a legal duty to support their children according to their own financial position and the specific reasonable needs of the child. Both parents are proportionately liable for the maintenance of their children according to their means.

• – All children, even those who are over the age of majority, are entitled to receive maintenance from their parents, whether or not the parents are/ were married, until the child becomes self-supporting.
• – Children can claim maintenance from their deceased parent’s estate.
• – Parents and grandparents can also claim maintenance for their bare necessities from their children and grandchildren if they have no or little income and the child or grandchild is in a position to help.
• – Spouses have a duty to support each other and can claim maintenance from each other.
• – Adopted children are entitled to maintenance 

Partners in customary, civil and religious marriage have a duty to support each other. Partners in a lifelong heterosexual or same sex relationship may claim maintenance from each other

A parent, guardian or curator can claim maintenance on behalf of minor children.

You can include food, toiletries, clothing, accommodation (including electricity, water and other house- hold necessities), recreation, medical care and education (which may include tertiary education). The amount of maintenance payable is affected by the standard of living of the parents and their standing in the community.

ForMediation can help you by mediating all maintenance related disputes. If the person obliged to pay maintenance fails to make any payment for a period of 10 days, you may apply for:

A warrant of attachment against a debt

In the case of the defaulter having an amount available in a bank account, a pension fund or any other form of debt owed to him, by attaching that account.

A warrant of execution

Attaching and selling the defaulter’s property, such as furniture, a car or a house.

Attachment of emoluments

Attaching the defaulter’s salary for payment of an amount every month until the arrears are settled. To apply, complete a FORM J306 E, which is available from the maintenance court. You must attach a copy of the maintenance order and a statement of payments and non-payments, indicating the amount of arrears. The clerk of the court can issue a notice to be served on the defaulter’s employer instructing them to make payments at certain times and in a certain way. Should the three civil procedures above be ineffective, you may approach the maintenance officer to lay a criminal charge against the defaulter.

A parent’s duty to support a child ends when the child becomes self-supporting, not when the child reaches a particular age. The duty of support changes when the child reaches the age of majority (18) and it is then confined to the child’s necessities.

‘Lying-in’ expenses are the mother and child’s expenses immediately before, during and immediately after the child’s birth and include hospital, medical and reasonable related costs. Both parents are proportionately liable for these costs in accordance with their means.

Yes. We help parties negotiate maintenance increases. Maintenance orders should be reviewed annually to keep up with changing circumstances and the rate of inflation. It is advisable to include an annual escalation clause into a maintenance order to avoid applying for an increase every year.

Yes. We can assist you to settle this out of court. If mediation is successful, the agreement is made an order of the court. You can apply for a reduction in maintenance in the following circumstances:

• – your personal circumstances change substantially, such as losing your job or being in a serious road accident that affects your ability to earn an income;
• – you lose your job;
• – your child takes on part-time work;
• – the other parent’s salary increases substantially

Yes. Your children’s right to receive maintenance (and your obligation to pay it) continues even if:

• – your ex does not allow you contact with them;
• – you or your ex remarry or are involved in a new relationship.

If your ex does not allow you contact with your children in terms of the divorce order, you must use the correct channels to resolve this dispute.

• – One approach is to base the maintenance on how much is actually spent on the child per month (even if this is not enough to meet all the child’s needs because the parent is struggling financially).
• – The other approach reflects how much it would cost per month to provide for the child in a way that meets his needs in a reasonable way.

The amount of maintenance payable is calculated by first determining the actual costs of raising a child. These expenses include rental, food, toiletries, medical, education, clothes, electricity, transport and other expenses. The total cost of raising each child is then shared by both parents in proportion to their respective incomes

The mother is obliged to contribute 38% (her income divided by the total income) and the father’s contribution would be 62% (his income divided by the total income). 

Parents should agree on the total of the reasonable living expenses of the child. If they disagree, mediation should be the next step.

Mediation is the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute. It opens up discussion and helps you work through the different legal issues that need to be settled in respect of the children. The settlement agreement is then made an order of court. Parents should carefully consider the views of the child when negotiating contact and care arrangements. It has been proven that mediation facilitates early settlement of any dispute which has arisen or is likely to arise and thereby save huge costs in legal and court fees.

Try marriage counseling if you believe a counsellor’s intervention may help save your marriage. Sometimes all that is necessary is for a counsellor to intervene and put everything into perspective for the couple. If divorce is unavoidable, you should consider mediation.

In South Africa, there are only two grounds for divorce:

• – irretrievable breakdown of marriage; and
• – mental illness or continued unconsciousness of one of the spouses.

SA divorce law is not based on fault, so it doesn’t matter whose fault it is that the marriage is over. You need to satisfy the court that the marriage has in fact broken down irretrievably. Here are some examples: 

• – a spouse moving out of the house;
• – abuse of any kind by one spouse towards the other spouse or the children;
• – adultery ;
• – habitual criminality;
• – a failure to support or provide a home for your family (as long as this is not through circumstances beyond your control);
• – refusal of marital privileges;
• – a spouse’s alcohol or drug addiction;
• – constant arguing, sulking or nagging;
• – a spouse’s obsession with a religious sect or political group;
• – loss of love between the spouses.

Both parties need to agree about where the children will live and how often the other parent will see them. If they can’t agree, the court as upper guardian of all minors will decide, usually on recommendation by the office of the family advocate.

If you can’t agree on how the property should be divided, the property will be divided in the default manner depending on whether you were married in or out of community of property and with or without the accrual system

Only a high court or one of 62 civil regional courts can order a divorce. You can conduct your own divorce proceedings, but we advise you to work with a Family Justice mediator, especially to resolve issues such as dividing the property, maintenance, care and contact of the children.

In a contested divorce the parties will dispute one or more of these issues:

• – the grounds of divorce alleged by the party initiating divorce proceedings, for example, that the marriage has not broken down irretrievably;
• – who the primary care giver of the children should be;
• – the division of matrimonial property

Contested divorces can take more than one day in court and, if in the High Court, the legal fees can be very high.

In an uncontested divorce the parties agree on all material aspects and sign a settlement agreement which then becomes part of the divorce order made by the court. No further evidence is needed to finalize the case.

The legal costs of uncontested divorces are much lower than in contested divorces and no legal representation is needed. A Family Justice accredited mediator can assist the parties to reach settlement and the parties need not have legal representation.

Every parent has a legal obligation to maintain their child until the child turns 18 or becomes self-supporting.

The amount of maintenance payable is calculated by first determining the actual costs of raising a child. These expenses include rental, food, toiletries, medical, education, clothes, electricity, transport and other expenses. The total cost of raising each child is then shared by both parents in proportion to their respective incomes.

The mother is obliged to contribute 38% (her income divided by the total income) and the father’s contribution would be 62% (his income divided by the total income).

One spouse may have a duty to maintain the other spouse. However, this is usually only if the other spouse was the breadwinner during the marriage and the claiming spouse was used to a certain standard of living which should be maintained after the divorce. The court will consider factors such as the age of the parties, their employment status, their qualifications, and the duration of the marriage.

In general, the Courts award little or no maintenance to an ex-spouse where one or more of the following factors are present:

• – the person is young or reasonably young;
• – they are well qualified;
• – there are no children;
• – they worked throughout their life and/ or are working at the time of the maintenance application;
• – they are in good health;
• – the marriage had not lasted long. The court may grant rehabilitative maintenance for a limited period to one party after the divorce, taking into consideration the specific circumstances of the couple

Yes. In terms of the Children’s Act 38 of 2005 these parental rights and responsibilities include the responsibility and right:

• – to care for the child;
• – to maintain contact with the child;
• – to act as guardian of the child, and
• – to contribute to the maintenance of the child.

Agreements concerning the care of children and contact arrangements should be incorporated into a written agreement. The following considerations must be taken into account:

• – will the care be granted jointly to both parents, or to one parent only?
• – if sole care is granted, which parent will it be granted to?
• – if joint care is granted, which parent will the children live with?
• – the contact arrangements granted to the parent with whom the children are not living.
• – the amount of maintenance payable for the children, and the contribution by each spouse.

A court will only grant a divorce if it is satisfied that the children’s best interests have been provided for. Although the parties may agree on how the care and contact of the children will be dealt with, the court ultimately has the sole discretion and will ensure that the children’s best interests are always taken into account